STATE OF OHIO v. LISA L. TURNER
C.A. No. 26591
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
June 12, 2013
[Cite as State v. Turner, 2013-Ohio-2433.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 12 01 0193
Dated: June 12, 2013
CARR, Judge.
{¶1} Appellant, Lisa Turner, appeals the judgment of the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} This matter arises out of a theft that occurred at the Little Tikes factory in Hudson, Ohio, during the early morning hours of January 3, 2012. On February 13, 2012, the Summit County Grand Jury returned an indictment charging Lisa Turner with one count of theft and one count of misuse of credit cards. Turner pleaded not guilty to the charges at arraignment and the matter proceeded to trial before a jury. Turner was convicted of both counts in the indictment. The trial court subsequently sentenced Turner to a 12-month term of incarceration on the count of theft, and a six-month term of incarceration on the count of misuse of credit cards. The sentences were ordered to be served concurrently. The trial court issued its sentencing entry on July 23, 2012, and Turner filed a timely notice of appeal.
{¶3} On appeal, Turner raises three assignments of error. This Court rearranges those assignments of error to facilitate review.
II.
ASSIGNMENT OF ERROR II
DEFENDANT‘S CONVICTIONS FOR THEFT AND MISUSE OF CREDIT CARD WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT OVERRULED DEFENDANT‘S CRIM.R. 29(A) MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR THEFT AND MISUSE OF CREDIT CARD.
{¶4} In her second assignment of error, Turner argues that her convictions were against the manifest weight of the evidence. In her third assignment of error, Turner argues that the trial court erred in denying her motion for a judgment of acquittal because the State failed to present evidence to support her convictions. This Court disagrees with both assertions.
{¶5} Turner was convicted of theft in violation of
Withhold property of another permanently, or for a period that appropriates a substantial portion of its value or use, or with purpose to restore it only upon payment of a reward or other consideration;
Dispose of property so as to make it unlikely that the owner will recover it;
Accept, use, or appropriate money, property, or services with purpose not to give proper consideration in return for the money, property, or services, and without reasonable justification or excuse for not giving proper consideration.
{¶6} Turner was also convicted of misuse of credit cards in violation of
CRIMINAL RULE 29
{¶7} This Court first addresses Turner‘s third assignment of error as it relates to the sufficiency of the evidence presented by the State at trial. Turner argues that the State failed to prove that she exerted control over Ms. Johnson‘s credit card without her permission. Turner also argues that the State failed to demonstrate that she used the credit card knowing that the card had been obtained or retained in violation of the law. Crim.R. 29(A) provides, in relevant part:
The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state‘s case.
{¶8} A review of the sufficiency of the State‘s evidence and the manifest weight of the evidence adduced at trial are separate and legally distinct determinations. State v. Gulley, 9th Dist. No. 19600, 2000 WL 277908 (Mar. 15, 2000). “While the test for sufficiency requires a determination of whether the State has met its burden of production at trial, a manifest weight challenge questions whether the state has met its burden of persuasion.” Id., citing State v. Thompkins, 78 Ohio St.3d 380, 390 (1997) (Cook J., concurring). When reviewing the
An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
Id. at paragraph two of the syllabus.
{¶9} The alleged victim, Heather Johnson, had been employed by Little Tikes for about four months when she went in for her shift that began on the evening of January 2, 2012. Ms. Johnson worked the third shift from 11:00 p.m. to 7:00 a.m. on the “grill line” where she trimmed parts and prepared them to be packaged. When Ms. Johnson took her scheduled break at 3:30 a.m. on January 3, 2012, she walked into the break room and pulled her wallet out of her purse so that she could get some change for the vending machines. She then placed her wallet back in her purse and walked to the vending machines, leaving her purse open on a table. The table was located in a spot close to the door leading out to the smoking room. Ms. Johnson‘s wallet contained her social security card, her debit card, as well as other miscellaneous items. Ms. Johnson testified at trial that she was “positive” she placed her wallet back in her purse prior to going to the vending machines. At that time, she was the only person in the break room. Because the vending area was located behind a wall, Ms. Johnson could not see her purse while she used the vending machines. Ms. Johnson testified that while she was at the vending machines, she heard the door to the break room open. After spending “[a] couple of minutes” at
{¶10} At just after 7:00 a.m., when Ms. Johnson had completed her shift, she stopped by the vending machines again while she was waiting for her ride home. When she opened her purse, she saw that her wallet was missing. After searching the trash and the shavings box, she spoke with a human resources representative to see if someone had turned in her wallet. Ms. Johnson then went to Chase Bank to give notice that her wallet had been stolen, and she learned that charges had been made on her credit card that morning at Sheetz and Circle K gas stations, as well as a Save-A-Lot grocery store. She promptly informed the bank that she had not made those charges. Ms. Johnson testified that the card was a debit card that could be used as a credit card, and that she had last used the card several days earlier at a Value King supermarket. Ms. Johnson explained that a PIN was required when using the card as a debit card, but the PIN was not required to use the card as a credit card. Ms. Johnson had never used the card as a credit card. After canceling the card at the bank, Ms. Johnson filed a police report with the Hudson police department.
{¶11} Officer Tyson Dinda assisted Ms. Johnson in filing the report. Officer Dinda asked Ms. Johnson to contact her bank to get the time and location of each transaction that had been made on her credit card. Upon obtaining that information, Officer Dinda then went to Sheetz, where he confirmed that Ms. Johnson‘s card had been used to buy gasoline at 7:23 a.m. that morning, and a pack of Maverick Menthol cigarettes at 7:24 a.m. that morning. The manager at Sheetz also allowed Officer Dinda to view a surveillance video that showed the transactions taking place. The surveillance video, which was played at trial, captured footage of the individual who used Ms. Johnson‘s card from five separate security camera angles, namely a
{¶12} Officer Dinda testified that after obtaining the information about the possible identification of the suspect, he went to Little Tikes and spoke with Juleen Payne, a human resources coordinator. Officer Dinda was able to obtain photographs from Little Tikes. From those photographs, Officer Dinda was able to confirm that the individual that Ms. Johnson had identified was, in fact, the person in the video. Officer Dinda returned to the police station where he obtained the contact information for Lisa Turner. Officer Dinda then called Turner and explained that a credit card had been stolen and that she was observed using that credit card at a Sheetz gas station, as well as a Circle K and a Save-a-Lot. Turner denied knowing anything
{¶13} In the early afternoon of January 3, 2012, Turner traveled to the police station and spoke with Officer Dinda. When Officer Dinda provided Turner with a copy of a photograph from Sheetz, Turner admitted that it was her in the photograph but again claimed that she had used her own credit card. Officer Dinda asked Turner to produce the credit card she had used that morning. Turner then pulled a credit card out of her purse. Officer Dinda testified, “Looking at the credit card she provided me I noted that, number one, it wasn‘t from a Chase Bank; number two, the last four digits on her credit card were 3040, whereas Heather Johnson‘s card, which was used in the transactions, was 3065.” When Turner continued to adamantly deny that she used Ms. Johnson‘s credit card, Officer Dinda advised Turner that she was under arrest for theft and misuse of a credit card. Turner was taken to the booking area where she was processed and read her Miranda rights. Turner declined to make any statement at that time. As Officer Dinda was walking Turner to the booking area, he noticed that Turner had a pack of Maverick Menthol cigarettes in her purse.
{¶14} On the evening of January 3, 2012, Turner made a phone call from the Summit County jail in which she discussed the events that had transpired that morning with an unidentified man as well as her mother. During the phone call, Turner admitted to her mother that she used a credit card at Sheetz that was not her own. Turner claimed to have found the
{¶15} The evidence presented by the State was sufficient to convict Turner of theft and misuse of a credit card. Ms. Johnson left her wallet in her open purse while she used the vending machines during her shift break. Ms. Johnson was the only person in the break room at that time, and she testified that she was “absolutely certain” her wallet was in her purse when she set it on a table before walking to the vending area. While Ms. Johnson was using the vending machines, she heard the door to the smoking room open. Ms. Johnson testified that Turner is a smoker, and that Turner was working third shift on the date in question. At the conclusion of her shift, Ms. Johnson discovered that her wallet, which contained her credit card, was missing from her purse. Ms. Johnson contacted Chase Bank and learned that charges had been made to her credit card at Sheetz, Circle K, and Save-a-Lot. When Ms. Johnson relayed the time and location
{¶16} Turner‘s third assignment of error is overruled.
MANIFEST WEIGHT
{¶17} Turner argues that she took the position at the trial that she used her own credit card at Sheetz, Circle K, and Save-a-Lot, and that the State made no attempt to demonstrate that she used the card at either Circle K or Save-a-Lot. Turner further argued that if it were not for the improper admission of the surveillance video and the transaction receipts, the remaining evidence at trial weighs heavily in favor of acquittal.
{¶18} Unlike an analysis of whether the State met its burden of production, a determination of whether a conviction is against the manifest weight of the evidence does not permit this Court to view the evidence in the light most favorable to the State to determine whether the State has met its burden of persuasion. State v. Love, 9th Dist. No. 21654, 2004-Ohio-1422, ¶ 11. Rather,
Weight of the evidence concerns the tendency of a greater amount of credible evidence to support one side of the issue more than the other. Thompkins, 78 Ohio St.3d at 387. Further when reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a “thirteenth juror,” and disagrees with the factfinder‘s resolution of the conflicting testimony. Id.
State v. Tucker, 9th Dist. No. 06CA0035-M, 2006-Ohio-6914, ¶ 5.
{¶19} This discretionary power should be exercised only in exceptional cases where the evidence presented weighs heavily in favor of the defendant and against conviction. Thompkins, 78 Ohio St.3d at 387.
{¶20} After a careful review of the entire record, weighing the inferences and examining the credibility of the witnesses, we cannot say that the trial court clearly lost its way and created a manifest miscarriage of justice in convicting Turner of theft and misuse of a credit card. There was no evidence presented at trial to dispute Ms. Johnson‘s testimony that her wallet was in her purse at the time she set her purse down on a table before using the vending machines during her break. There is also no dispute that Ms. Johnson and Turner were both working third shift on the night of the incident. Ms. Johnson testified that she heard the door to the smoking room open while she was using the vending machines during her break, and she knew that Turner was a smoker. After Ms. Johnson discovered that her credit card was missing, Chase Bank informed her of the time and location of each transaction that was charged to her card. Turner admitted to Officer Dinda that she went to Sheetz and Save-a-Lot after she finished her shift. Turner further admitted in a jail call that she purchased gas at Sheetz with a credit card that was not her own.
{¶21} Accordingly, Turner‘s second assignment of error is overruled.
ASSIGNMENT OF ERROR I
TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN OVERRULING TURNER‘S OBJECTION AND PERMITTING THE STATE TO PLAY A SURVEILLANCE VIDEO AND INTRODUCE TRANSACTION RECEIPTS WITHOUT THEM BEING PROPERLY AUTHENTICATED.
{¶22} In her first assignment of error, Turner argues that the trial court erred in allowing the State to introduce certain exhibits at trial. Specifically, Turner argues that the State failed to properly authenticate the Sheetz surveillance video and transaction receipts pursuant to Evid.R. 901.
{¶23} Evid.R 901 provides that authentication or identification of a piece of evidence is a condition precedent to the admissibility of that evidence. “Under Evid.R. 901(A), videotapes are properly admitted into evidence only upon sufficient showing that they accurately depict what their proponent purports they depict.” Bryant v. Terry, 9th Dist. No. 20140, 2001 WL 324389 (Apr. 4, 2001). The admission of videotape evidence is a matter of discretion for the trial court. State v. Miller, 9th Dist. Nos. 10CA009922, 10CA009915, 2012-Ohio-1263, ¶ 35. If this Court determines that the trial court improperly admitted the evidence, this Court must then determine whether the error constituted harmless error beyond a reasonable doubt. State v. Abraham, 9th Dist. No. 26258, 2012-Ohio-4248, ¶ 42. The application of the harmless error rule is simple; if, in the absence of all erroneously admitted evidence there remains overwhelming evidence of guilt, then the error was harmless. State v. Williams, 6 Ohio St.3d 281, 290 (1983).
{¶24} As noted above, during the direct examination of Officer Dinda, the State introduced the Sheetz surveillance video as well as several transaction receipts. Defense counsel objected to the admission of these exhibits on the basis that they were not properly authenticated.
{¶25} Assuming without deciding that the trial court erred in allowing the State to introduce the surveillance video and the receipts, any error was harmless. The exhibits in question were offered for the sole purpose of demonstrating that Turner went to Sheetz after she completed her shift and made charges using Ms. Johnson‘s credit card. Ms. Johnson was able to view her account record at Chase Bank after her card was stolen, and she testified that her account history indicated that charges were made on her credit card at multiple locations, including Sheetz. Ms. Johnson specifically testified that one of the charges was a $25 transaction at Sheetz. After initially denying any knowledge of the incident, Turner admitted to Officer Dinda that she went to Sheetz after she got off her shift. Turner further admitted during a jail call that while she was at Sheetz, she used a credit card that did not belong to her to purchase $25 worth of gas. Thus, even if the surveillance video and the receipts had not been admitted, it was clear from the evidence presented at trial that Turner went to Sheetz after she completed her shift at Little Tikes and used Ms. Johnson‘s credit card to purchase gas.
{¶26} It follows that Turner‘s first assignment of error is overruled.
III.
{¶27} Turner‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
MOORE, P. J. WHITMORE, J., CONCUR.
APPEARANCES:
SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.